1.2 The Respondent is, according to the BulkRegister.com Whois database,
Peter Zahoruk, President and Director, Communication X Inc., an Ontario corporation
with its head office at 3077 New Street, Burlington, Ontario, L7N 1M6, Canada.

3.1 Complaint filed by hard copy received on April 12, 2001, and electronically
on April 19, 2001, naming Peter Zahoruk, President and Director, Communication
X Inc. as Respondent.

3.2 In accordance with Paragraph 3(b)(xiii), the Complainant agrees
to submit, only with respect to any challenge that may be made by the Respondent
to a decision by the Administrative Panel to transfer or cancel the domain name
that is the subject of this Complaint, to the jurisdiction of the courts where
the Respondent’s is located, as shown by the address given for the domain name
holder in the concerned registrar’s Whois database at the time of the submission
of the Complaint to the WIPO Center.

3.3 No legal proceedings have been initiated, as yet. (Rules, paragraph
3(b)(xi))

3.4 As required by the Rules and the WIPO Supplemental Rules, payment
in the amount of USD 1,500 by bank draft has been sent with the initial Complaint
on April 12, 2001.

3.5 The Complainant agreed that its claim and remedies concerning the
registration of the domain name, the dispute, or the dispute’s resolution shall
be solely against the domain name holder and waives all such claims and remedies
against (a) the WIPO Arbitration and Mediation Center and Panelists, except
in the case of deliberate wrongdoing, (b) the concerned registrar, (c) the registry
administrator, (d) the Internet Corporation for Assigned Names and Numbers,
as well as their directors, officers, employees, and agents.

3.6 A copy of this Complaint, together with the cover sheet as prescribed
by the Supplemental Rules, has been sent or transmitted by the Complainant to
the Respondent on April 10, 2001, by pre-paid courier with return
receipt requested to the address provided by the Respondent as specified above
pursuant to the Rules, paragraph 2(b).

3.7 A copy of this Complaint, has also been sent or transmitted by the
Complainant to the concerned registrar BulkRegister.com, Inc. on April 10, 2001,
by pre-paid courier with return receipt requested to the address provided by
the registrar as set out in Paragraph 9 of the Complaint.

3.8 On April 23, 2001, Respondent received a Notification of Complaint
and Commencement of Administrative Proceeding from the WIPO Arbitration and
Mediation Center (Center) informing the Respondent that an administrative
proceeding had been commenced by Complainant in accordance with the Uniform
Policy for Domain Name Dispute Resolution, adopted by the Internet Corporation
for Assigned Names and Numbers (ICANN) on August 26, 1999, (the Policy),
the Rules for Uniform Domain Name Dispute Resolution Policy, approved by ICANN
on October 24, 1999, (the Rules) and the WIPO Supplemental Rules for
Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules).
The Respondent submitted his Response electronically on May 13, 2001, and was
acknowledged by the Center as having received it on May 15, 2001.

3.9 The Complainant elected to have the dispute decided by a single-member
Administrative Panel.

3.10 The single Panel member, Cecil O.D. Branson, Q.C. submitted a
Statement of Acceptance and Declaration of Impartiality and Independence on
May 10, 2001, and was duly appointed in accordance with paragraph 15 of the
Rules. The Panel was required to forward its decision to the Center by June
11, 2001.

3.11 The Panel finds that it was properly constituted and appointed
in accordance with the Uniform Rules and WIPO’s Supplemental Rules.

4. Factual Background

4.1 The Complainant, Israel Harold Asper, is a businessman who has typically
been known by his nickname "Izzy". It is asserted on his behalf in
the Complaint that "Izzy Asper" has achieved widespread public recognition
throughout Canada and internationally as the founder of CanWest Global Communications
Corp. (CanWest), an international and diversified media company. He has
also been known as an accomplished lawyer, politician and philanthropist. Despite
his achievements as a lawyer, author and politician, Izzy Asper is most famous
as a broadcaster." This Panel accepts this as a fact. While diversified,
his business achievements have been primarily in the news media. He is the founder,
majority controlling shareholder, and Executive Chairman of the Board, of a
national Canadian broadcasting network (Global Television), a new media business
(CanWest Interactive), and has a significant international broadcasting presence
in New Zealand, Australia, and Ireland. CanWest is also Canada's largest daily
newspaper publisher with 14 major metropolitan newspapers, over 120 community
newspapers and a fifty- percent interest in one of Canada’s national newspapers,
the National Post. His name is closely associated with the broadcasting
business in Canada and internationally. In 1995, he was inducted as an Officer
of the Order of Canada, and awarded the North American Broadcasters Association
International Achievement Award in 1999. He also has received the International
Distinguished Entrepreneur award.

4.2 "Izzy" Asper’s career in the above-noted endeavours, and
his notoriety therein, have endeared for a period of time well in excess of
twenty-five years.

4.3 The Complainant does not hold a registered trademark in his name,
but lays claim to rights in a common law trademark sufficient to ground an action
for passing off.

4.4 On August 4, 2000, the Respondent registered the following Domain
Names, which are the subject of this proceeding:

<izzyasper.com>
<izzyasper.net>
<izzyasper.org>

Collectively the Domain Names.

4.5 On or about August 5, 2000, CanWest received an e-mail from the
attorney on behalf of the Respondent.

"Please contact me so we can discuss my ownership of the domain names
of

are virtually identical to a common law mark to which the Complainant has rights
and that the Respondent’s use of the Domain Names in question infringes on Complainant’s
rights by confusing the public as to the origins of the

<izzyasper.com>
<izzyasper.net>
<izzyasper.org>

pursuant to the Policy, paragraph 4(a)(i).

5.2 Complainant contends that Respondent has no rights or legitimate
interests in the Domain Names

<izzyasper.com>
<izzyasper.net>
<izzyasper.org>

pursuant to the Policy, paragraph 4(a)(ii).

5.3 Complainant contends that Respondent registered and used the Domain
Names

<izzyasper.com>
<izzyasper.net>
<izzyasper.org>

in bad faith in violation of the Policy, paragraph 4(a)(iii).

B. Respondent

5.4 Although the Respondent has submitted a Response in accordance with
the Uniform Domain Name Dispute Resolution Policy, this does not address, specifically,
the entitlement of the Complainant to assert a common law mark to which he has
rights under the Policy. Nevertheless, this must be proved to the satisfaction
of the Panel.

5.5 The Respondent claims to hold a legitimate interest in the acquisition
of the disputed Domain Names.

5.6 The Respondent denies any bad faith in regard to his application
for and his use of the Domain Names

<izzyasper.com>
<izzyasper.net>
<izzyasper.org>.

5.7 It is unclear whether the Respondent disputes the jurisdiction of
this Administrative Panel or not as it appears in his Response that jurisdiction
is challenged, while later, he expresses a wish to resolve the matter with a
single Administrative Panelist. In any event, the Panel refers to paragraphs
6.1 through 6.4 below, which deal with this issue.

C. No Other Submissions

5.8 The Panel has not received any other requests from Complainant or
Respondent regarding further submissions, beyond the Complaint, waivers or extensions
of deadlines, and the Panel has not found it necessary to request any further
information from the Parties.

6. Discussion and Findings

6.1 The Complaint was submitted on the basis of the provisions of a
Registration Agreement in effect between the Respondent and Network Solutions
which incorporates by reference, the Uniform Domain Name Dispute Resolution
Policy (the "Policy") in effect at the time of the dispute. The Policy
requires that domain name registrants such as Respondent agree in writing to
submit to a mandatory administrative proceeding regarding third-party allegations
or abuse of domain name registration (Policy, paragraph 49(a)). No registration
is approved in the absence of such a written submission.

6.2 Such administrative proceedings are conducted by ICANN-approved
dispute resolution service providers such as WIPO. The Policy provides an administrative
means for resolving disputes concerning allegations of abuse of domain name
registration, subject to referral of the dispute to a court of competent jurisdiction
for independent resolution (Policy, paragraph 4(a)).

6.3 The Policy, and the Rules for Uniform Domain Name Dispute Resolution
Policy (the "Rules"), establish procedures intended to assure that
respondents are given adequate notice of proceedings commenced against them,
and a reasonable opportunity to respond (See e.g. paragraph 2(a), Rules).

Applicable Law

6.4 The Complainant has cited, in support of its case, a Canadian judicial
decision, a Canadian text, and a number of decisions of Administrative Panels
pursuant to the Policy and the Rules of ICANN. The Respondent has not referred
to any specific legal authority, national or international.

6.5 Paragraph 15(a) of the Rules instructs this Panelist as to the
principles to be used in rendering a decision: "A Panel shall decide a
complaint on the basis of the statements and documents submitted and in accordance
with the Policy, these Rules and any rules and principles of law that it deems
applicable."

6.6 Where the Complainant and Respondent are domiciled in the same
country, previous Panels have held that this country’s laws may be used "to
the extent that it would assist the Panel in determining whether the Complainant
has met its burden as established by paragraph(4)(a) of the Policy." See
The Rockport Company v. Gerard A. PowellWIPO
Case No. D2000-0064; Copart Inc. v. SalvageNowWIPO
Case No. D2000-0417; Cellular One Group v. IP ServicesWIPO
Case No. D2000-1035; and Sara Lee Southern Europe, S.L. v. S.L. Proteccion
de DominosWIPO Case No. D2000-1690.

6.7 While the Panel agrees that in this matter references to Canadian
law are applicable as both the Complainant and the Respondent are situated in
Canada, it must also be borne in mind that there are essential differences between
trademarks and domain names, and between the bases for proving causes of action
available in various courts as contrasted with what is necessary to enable this
Panel to reach its determinations under the Policy and Rules. This is also the
case in regard to the remedies available through domestic courts and those obtainable
under the Policy. With trademarks, there can be more than one registrant of
the same mark and its effect may be limited by the category of goods to which
it relates, and the geographic boundaries of its territorial protection. There
are no such limitations with domain names. Due to the latter’s technological
limitations and borderless use, only one entity can be registered in each gTLD
name throughout the world. Thus, there is justification for different legal
principles to apply to the Uniform Domain Name Dispute Resolution Policy, its
Rules, and the interpretation given these by Administrative Panels operating
thereunder. It is these Rules with which all applicants for the registration
of domain names agree to be bound. In any event, no one is precluded from seeking
any remedies available from national courts.

6.8 The Complainant has the burden of proof in all material issues.
The Role of the Panel is to make findings of fact based on the evidence presented,
provided the matters at issue are within the scope of the Policy. The appropriate
standard for fact-finding is the civil standard of a preponderance of the evidence.
Under the preponderance of the evidence standard a fact is proved for the purpose
of reaching a decision when it appears more likely than not to be true based
on the evidence. See Madonna Ciccone, p/k/a Madonna v. Dan Parisi and ‘Madonna.com’WIPO Case No. D2000-0847; Fleetstar
Information Systems Ltd. v. Stephen MorrisWIPO
Case No. D2001-0518.

6.9 This case arises in the midst of an active dialogue concerning the
issue of the extent to which a person is given a right to use the ICANN Policy
and the WIPO Rules to obtain a transfer of a Domain Name or its cancellation.
In the Interim Report of the Second WIPO Internet Domain Name Process relating
to the Recognition of Rights and the Use of Names in the Internet Domain Name
System issued on April 12, 2001, the subject is dealt with at length. (Footnote
1) This document bears review by anyone involved in Domain Name disputes
concerning a claim to protection for a personal name, which has not been registered
as a trademark. It addresses the right to protect one’s own identity, often
referred to as a "personality right, which "focuses on an individual’s
right to control the commercial use of his or her identity."
[Emphasis added] (Footnote 2) This
right, it is said, "serves to prohibit the unauthorized commercial
use of a person’s name, likeness or other personal characteristics closely
associated with him or her." [Emphasis added] (Footnote
3)

6.10 The Final Report of the WIPO Internet Domain Name Process, April
30, 1999, addressed this issue in the context of The Scope of the Administrative
Procedure, commencing at paragraph 163. (Footnote
4) It put the matter as follows:

164. The views of commentators on the desirable scope of the administrative
procedure were divided. Certain commentators favored the broad approach of opening
the procedure to any intellectual property dispute with respect to a domain
name registration. In general, they favored the development of a body of administrative
law that would, through the procedure, provide an effective international enforcement
mechanism for intellectual property rights as an alternative to expensive and
time-consuming multijurisdictional litigation.

165. The preponderance of views, however, was in favor of restricting the scope
of the procedure, at least initially, in order to deal first with the most offensive
forms of predatory practices and to establish the procedure on a sound footing.
Two limitations on the scope of the procedure were, as indicated above, favored
by these commentators.

166. The first limitation would confine the availability of the procedure to
cases of deliberate, bad faith abusive registrations. . . .

167. The second limitation would define abusive registration by reference only
to trademarks and service marks. Thus, registrations that violate trade names,
geographical indications or personality rights would not be considered to fall
within the definition of abusive registration for the purposes of the administrative
procedure. Those in favor of this form of limitation pointed out that the
violation of trademarks (and service marks) was the most common form of abuse
and that the law with respect to trade names, geographical indications and personality
rights is less evenly harmonized throughout the world, although international
norms do exist requiring the protection of trade names and geographical indications.

168. We are persuaded by the wisdom of proceeding firmly but cautiously and
of tackling, at the first stage, problems which all agree require a solution.
. .

6.11 It was as a result of the above that it was concluded that the
Policy should be worded as they are now found therein as paragraph 4(a).

6.12 The Interim Report of the Second WIPO Internet Domain Name Process
further noted that there were four important aspects, including certain commonalties
and differences with respect to the protection afforded under trademark law
and under the law of personality rights, which may be relevant to the discussion
of protection of personal names in the DNS. These included:

(iii) Infringement of both a trademark or personality right occurs through
unauthorized use by a third party. However, under trademark law the right is
infringed only if a third party’s use of the mark is likely to cause a likelihood
of confusion among consumers as to the source of goods or services. The personality
right, on the other hand, does not require the demonstration of any confusion;
instead, it is infringed when the public can identify the person in question
from the third party’s unauthorized commercial use.

(iv) Both are concerned with a commercial exploitation by a third party that
infringes upon the right. However, under trademark law, the mark itself for
which protection is sought must be used in commerce as a precondition
to relief, whereas the personality right may protect a person who does not commercially
exploit his or her own identity, but nevertheless desires to prevent others
from doing so.

6.13 Since the introduction of the Policy numerous Panels have been
faced with deciding whether the use of an identical or confusingly similar name
to that of a well-known person offends the Policy. These cases fall into a number
of categories.

6.19 Finally, there has been one case of a politician, namely Anne
McLellan, the Minister of Justice and Attorney General of Canada, eResolution
case no. AF0303.

In order to obtain the relief requested under the Policy, Complainant must
prove in the administrative proceeding that each of the three elements of paragraph
4(a) are present:

(i) The domain name registered by Respondent is identical or confusingly similar
to a trademark or service mark in which Complainant has rights.

6.20 There are numerous decisions in which Panels have recognized the
right of a Complainant to claim a common law mark where there is no registered
trademark. In other cases the Complainant will have registered his or her name
as a trademark, in which event that name will be protected within that geographic
area whose law recognizes the trademark in question, and the protection for
that trademark will be limited to the categories of products designated in the
certificate of registration. The case involving Madonna is an example
in the cases referred to above in paragraphs 6.14 -- 6.17. In the Bruce Springsteen
case, the Complainant had registered the Domain Name <brucespringsteen.net>,
which was used as the host site for an official Bruce Springsteen web site.
The Respondent registered the Domain Name <brucespringsteen.com>.

6.21 In the Daniel Marino case, the Panel, citing Jeanette Winterson
v. Mark HogarthWIPO Case No. D2000-0235,
Cho Yong Pil v. ImageLand Inc.WIPO
Case No. D2000-0229, Hunton & Williams v. American Distribution
Systems, Inc. et al., WIPO Case No. D2000-0501
and Julia Fiona Roberts v. Russell Boyd, WIPO
Case No. D2000-0210 found that the name "Dan Marino" had acquired
sufficient secondary meaning within the American sports, entertainment and public
service communities to constitute a valid common law trademark. The Panel in
the case involving Steven Rattner emphasized the importance of understanding
that the protection at common law must be determined on a case-by-case basis,
depending greatly on the factual basis of each individual case. "At common
law, as the primary task is to determine if there is confusion in the mind of
the consumer, the notoriety of a particular mark is gauged relative to a number
of factors, including the territory within which the mark is used, the products
for which it is being used, etc." The Cho Yong Pil Panel found it
necessary to review the evidence with a mind to determining whether the name
‘Cho Yong Pil’ "functions as the Complainant’s mark". In Monty
and Pat Roberts, Inc. v. J. Bartell, the Panel determined that "[i]f
Complainant can establish that ‘Monty Roberts’ is a famous mark, then it may
be able to protect that mark against dilution, even if an infringer is not involved
in the same or competing channel of trade." (Footnote
6)

6.22 In the cases mentioned in paragraphs 6.14 – 6.17 above where the
Complainant was successful he or she either used the personal name in question
as a marketable commodity, allowing his or her name or image to be used for
a fee, to promote someone else’s goods or services, or for direct commercial
purposes in the marketing of his or her own goods and services. In some of these,
including Monty and Pat Roberts, there were multi-purposes. The pure
business cases are more problematic. An obvious difference between them and
the above situations is that it is less likely that a business person will use
his or her name to market their own goods or services, and very unlikely that
they will do so to market someone else’s. Take, by way of examples, Henry Luce,
Kenneth Thomson, Conrad Black and Rupert Murdoch. Are their publications marketed
as a product connected to the person in question? Not likely. It is also not
likely that someone would pay a fee to use these names in the promotion of a
good or service with which they have no connection. Yet, each of these gentlemen
is or was a famous businessman with a very high profile in the publishing business
and held in high regard by many. This doesn’t mean that a businessperson’s name
is not entitled to protection as a Domain Name. As demonstrated in the Supreme
Court of Canada decision in Hurlbut Co.Ltd. v. Hulburt Shoe [1925] 2
D.L.R. 121 a person may be able to use his personal name to prevent its improper
use if he or she can show that if "all persons whom in any way it concerns"
has come to know that a particular article associated with his or her name means
that he or she is responsible for its source. Under this circumstance, the personal
name takes on a secondary meaning. Probably, when the T.Eaton Co. was owned
by Timothy Eaton and Macy’s owned by someone of that name, their names could
have been protected on this basis. There is no evidence in the Complaint that
the name of the Complainant has formed a part of the name of any of his companies.

6.23 It is the view of this Panel that it would be helpful in these
personal name cases if the Complaint, when dealing with the criteria in 4(a)(i)
identified what the nature of the commercial connection would be in the Complainant’s
use of the Domain Name in issue. In many cases, this will be so obvious as not
to need any further embellishment. It would only be in such cases, as here,
where this is not apparent that such evidence would be needed. In this case,
the Complainant has not shown on a preponderance of the evidence that he uses
his personal name for the purpose of the merchandising or other commercial promotion
of goods or services, or that he intended to do so.

6.24 In this case, there is no evidence that the Complainant has ever
used his personal name for the purpose of merchandising or other commercial
promotion of goods or services, or that he intended to do so. There is evidence
that as a result of a very large donation by Izzy Asper to the University of
Manitoba, its business school was renamed the Asper School of Business in May
2000. Also, his name appears in connection with other charitable endeavours
including the Asper Foundation and the Asper Jewish Community Campus. But it
is not argued on his behalf that there was any commercial consideration given
to his name being included in the name of any of these bodies. It would not
therefore be appropriate for this Panel to draw any such conclusions.

6.25 The cases involving claims by or on behalf of business people,
shown in paragraph 6.17 above, do not demonstrate a pattern. The Monty and
Pat Roberts cases clearly show a commercial attachment to the use of their
names. Similarly, in the case of Steven Rattner, he provided investment
banking and corporate advisory services under his own name and therefore would
have an obvious interest in protecting that name for commercial uses. There
is no evidence on the record in this case that Izzy Asper has ever used his
name as part of a corporate name. In Harrod’s Limited v. Robert Boyd,
supra, it should be noted that the Complainant was not the person whose
name was in question, but Harrod’s Limited, the well-known British department
store on whose Board Dodi al-Fayed served, thus the Panel in that case concluded
that "The commercial impression is that domain name is associated with
goods and services sponsored by or affiliated with the late Dodi Fayed or his
estate". This distinguishes that case from the one before this Panel. Further,
the case was one of the very early ones decided without benefit of the subsequent
material available to this Panel which reserves the right to disagree with the
reasoning in an appropriate subsequent matter.

6.26 There are two dominant concerns inducing the protection of marks.
The first is the protection of consumers who associate the name with goods and
services of a known source and quality. The second is to preserve the value
of goodwill built up over time by the owner of the mark. In the case of those
(primarily entertainers and professional athletes) who sell their goodwill to
others in the marketing of goods and services not directly associated with the
holder, the first rationale, above, is likely to be dominant. This is much less
likely to be the case with other personal name marks, particularly those, which
have not obtained a secondary meaning. It is the view of this Panel that the
name of the Complainant falls within the latter category.

6.27 As for the cases involving royalty and a politician, their factors
are sufficiently distant from those applicable in this case as not to be considered
here. This is particularly the case given the current active dialogue on the
subject of personal names referred to in paragraph 6.9 above.

6.28 In Ahmanson Land Company v. Save Open Space and Electronic Imaging
Systems, WIPO Case No. D2000-0858
and Ahmanson Land Company v. Vince Curtis, WIPO
Case No. D2000-0859, the Panels found that trade names or marks that have,
through usage, become distinctive of the users’ goods or services in commerce
may be protectable as they have acquired a "secondary meaning". In
the former case, it said: "A mark comprising a personal name has acquired
secondary meaning if a substantial segment of the public understand the designation,
when used in connection with services or a business, not as a personal name,
but as referring to a particular source or organization." This Panel does
not find this to be the case with the personal name of the Complainant. In Canada,
the ownership of interests in newspapers change as frequently as that of major
league sports coaches. The first Ahmanson Panel further held that personal
names used as marks are treated as strong marks upon a showing of secondary
meaning and a mark comprising a personal name will acquire secondary meaning
if a substantial segment of the public understands the designation, when used
in connection with services or a business, not as a personal name, but as referring
to a particular source or organization. No such secondary meaning has been proved
in the name "Izzy Asper".

6.29 While, therefore, this Panel has no doubt that the Complainant,
known as Izzy Asper, has a deservedly famous name and that this attribute may
provide him with a remedy in a national court for an alleged improper use of
his name, the present Policy and Rules which bind this Panel do not permit a
finding that he has rights in a trademark or service mark of such a nature as
to successfully challenge a Domain Name which is identical or confusingly similar.

(ii) Respondent has no rights or legitimate interests in respect of the domain
name.

6.30 The Policy in paragraph 4(c)(iii) indicates that a Respondent may
demonstrate its rights to and legitimate interest in the Domain Name in responding
to a Complaint if the Panel finds it to be proved, based on its evaluation of
all evidence presented, that the Respondent is "making a legitimate non
commercial or fair use of the Domain Name, without intent for commercial gain
to misleadingly divert consumers or to tarnish the trademark or service mark
at issue."

6.31 The Panel in the Jules I. Kendall case focused closely upon
the necessity of showing a commercial relationship when it held that it was
material that the Respondent did not register the Domain Name to disrupt the
business of a competitor in that there was no indication that the Respondent
had intentionally attempted to attract Internet users to its site for commercial
gain, based on confusion with the name of the Complainant.

6.32 In the Monty Roberts case, the Respondent lost its fair
use argument as its web site was used for commercial activity in that it directed
users to sites where merchandise could be purchased, including some which competed
with that marketed by the Complainant.

6.33 In the Jeanette Winterson case, the Respondent failed to
succeed in demonstrating any legitimate right he may have had to use the name
for a site promoting the Complainant’s works and as a "fan club" by
virtue of the fact that he offered the name in question for sale.

6.34 In the case concerning the Jimi Hendrix name the site was
used to advertise vanity e-mail addresses incorporating the <Jimihendrix.com>
Domain Name.

6.35 The question of "fair use" has come up in a number of
cases. Recently, it has been the subject of an award in Ahmanson Land Company
v. Vince Curtis, supra. In that case the Panel found a fair use where
the purpose of Respondent’s web sites were shown to have served as non-commercial
platforms to criticize the commercial activities of Complainant. The Panel said
"[d]eterminations regarding legitimate non-commercial and fair use under
the Policy require a balancing of trademark holder and other public interests."
This Panel agrees with this statement.

6.36 The Respondent says that his possession of the three Domain Names
involving the Complainant is integral for it to maintain both the artistic merit
and the purely satirical nature of a web site created by him entitled Who
Wants To Be A Canadian Media Baron. The site, he says, "was designed
in response to the both the popularity of the program WHO WANT TO BE A MILLIONAIRE
[sic], and the public outcry over Canadian media mergers and acquisitions,
particularly those of the complainants." The site was operated as a game
with people answering a question "Who Wants to Be A Canadian Media Baron"
with the options including the Complainant in this case. This site is not now
available, says the Respondent, due to the fact that the Domain registrar required
that it be disabled, although a screen shot of one of the frames from the multimedia
project is annexed to the Response. A copy of the communications from the registrar
to this effect is not provided.

6.37 Previous Panel decisions have held that it is not appropriate to
use the name of the entity whom one wishes to criticize on the basis of "fair
use" to divert Internet traffic to the site. See the Monty Roberts
case, above, along with Compagnie de Saint Gobain v. Com-Union Corp,
WIPO Case No. D2000-0020 and Ahmanson
Land Company v. Save Open Space and Electronic Imaging Systems, WIPO
Case No. D2000-0858.

6.38 While the onus is on the Complainant to prove each of the three
elements of the Policy, once he makes a prima facie showing that a Respondent
lacks rights in the Domain Name, the burden of proof shifts to the Respondent
to come forward with demonstrable evidence proving a legitimate interest in
the Domain Name. See Document Technologies, Inc. v. International Electronic
Communications Inc., WIPO Case No. D2000-0270
and Universal City Studios, Inc. v. G.A.B. Enterprises, WIPO
Case No. D2000-0416. This is consistent with the Policy in paragraph 4(c)(iii),
which speaks in terms of the Respondent demonstrating his rights or legitimate
interests to the Domain Name for legitimate non-commercial or fair use purposes.
The Policy in the opinion of this Panel, strikes the correct relationship between
the overall onus of proof in regard to an issue in a case as contrasted with
the proof of a fact material to that issue. In regard to the latter, the onus
is always on a person who asserts a proposition of fact, which is not self-evident.
See Robins v. National Trust Co.Ltd. et al [1927] 2 D.L.R. 98, [1927]
A.C. 515 (P.C.). Thus, while the effect of the assertion, as above, made by
the Respondent may have amounted to fair use, its credibility is significantly
negated by reason of the elements of bad faith as addressed below in connection
with paragraph 4(a)(iii) of the Policy.

6.39 This Panel finds that the Respondent has no rights or legitimate
interests in respect of the Domain Name(s).

<izzyasper.com>
<izzyasper.net>
<izzyasper.org>

(iii) The domain name has been registered and is being used in bad faith.

6.41 The term "use in bad faith" in paragraph 4(a)(iii) does
not refer to "use in commerce" in the trademark sense of the word,
but refers in the broad sense to a pattern of conduct respecting the registered
Domain Name in dispute, while passive holding of the Domain Name, without use
in commerce, may support a holding of use in bad faith. See Arturo Salice
S.p.A. v. Paul Izzo & Company, WIPO
Case No. D2000-0537.

6.42 While this Panel is prepared to accept that the e-mail from the
Respondent to the corporate office of the Complainant one-day after the Respondent
registered its Domain Name is not necessarily evidence of an offer to sell the
domain in question, it is evidence of bad faith. The e-mail stated:

"Please contact me so we can discuss my ownership of the domain names
of

This is, in the opinion of this Panel, inconsistent with the alleged plan of
fair use by the Respondent of the Domain Name(s) as recited above in paragraph
6.36. In addition, the e-mail header indicated the e-mail was from "Izzy
Asper" and the e-mail address used to send the e-mail was <izzyasper@hotmail.com>.
This was followed by a notification by the Respondent that he was forwarding
his original e-mail and the response from Complainant’s office to several newsrooms
throughout Canada. On balance, and in the absence of any explanation by the
Respondent to the allegation in the Complaint that there could be no bona fide
reason for this e-mail, the Panel accepts the allegation.

6.43 There is also evidence that the Respondent has engaged in a pattern
of such conduct by registering other Domain Names which are identical or confusingly
similar to the names of famous persons such as the name of a former Canadian
Prime Minister, a celebrated businessman and publisher, an American wrestler,
and of the son of the Complainant who was being groomed to eventually succeed
his father in the family businesses.

6.44 This Panel finds that the Domain Names <izzyasper.com>, <izzyasper.net>,
and <izzyasper.org> have been registered and are being used in bad faith.

7. Decision

7.1 The only remedy sought by the Complainant, as set out in paragraph
51 of the Complaint is that this Administrative Panel issue a decision that
the contested Domain Names be transferred to the Complainant. As the Rules in
paragraph 3(b)(x) require that the Complaint specify, in accordance with the
Policy, the remedies sought, and as the Complainant has not asked for a cancellation
of the registrations in question, only the former remedy will be addressed.

7.2 The Panel finds and decides:

(i) the Domain Name is not identical or confusingly similar to a trademark
in which Complainant has rights;

(ii) Complainant has established that Respondent has no rights or legitimate
interests in respect of the Domain Names;

(iii) Complainant has established that the Domain Name has been registered
and is being used in bad faith.

7.3 The request that the Administrative Panel appointed in this administrative
proceeding issue a decision that the contested Domain Names <izzyasper.com>,
<izzyasper.net>, and <izzyasper.org> be transferred to the Complainant
is denied.

2. This Report also, in paragraphs 187-226, addresses in a similar vein whether
the approach to domains with geographical indications, indications of source
and geographical terms ought to be reviewed. Some might therefore think it ironic
that the Complainant’s corporation is the holder of the registered domain <canada.com>.
(back to text)

5. There was another case of a performer not being entitled to the transfer
of his stage name. This was Gordon Sumner p/k/a Sting v. Michael UrvanWIPO Case No. D2000-0596. This case turned
primarily on the fact that the name "Sting" was not a personal name
and was too generic to obtain its protection. (back to text)

6. However, as the Panel in this case footnotes the Lanham Act as authority
for this proposition, its relevance to our case may be questionable as Canada
has no comparable legislation recognizing the effect of dilution. (back
to text)